Samantar v. Yousuf, No. 08–1555.

560 U.S. 305

130 S.Ct. 2278

176 L.Ed.2d 1047

Mohamed Ali SAMANTAR, Petitioner,

v.Bashe Abdi YOUSUF et al.

No. 08–1555.

Supreme Court of the United States

Argued March 3, 2010.

Decided June 1, 2010.

Shay Dvoretzky, Washington, DC, for petitioner.

Patricia A. Millett, Washington, DC, for respondents.

Edwin S. Kneedler, for the United States as amicus curiae, by special leave of the Court, supporting the respondents.

Julian H. Spirer, Fred B. Goldberg, Spirer & Goldberg, P.C., Bethesda, MD, Michael A. Carvin (Counsel of Record), Shay Dvoretzky, David J. Strandness, Paul V. Lettow, Jones Day, Washington, DC, for Petitioner.

Pamela S. Karlan, Jeffrey L. Fisher, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, Beth Stephens, Pamela M. Merchant, Andrea C. Evans, Natasha E. Fain, L. Kathleen Roberts, San Francisco, CA, Amy Howe, Kevin K. Russell, Howe & Russell, P.C., Bethesda, MD, Patricia A. Millett, Counsel of Record, Mark J. MacDougall, Thomas C. Goldstein, Steven Schulman, Lauren Kerwin, Akin, Gump, Strauss, Hauer & Feld LLP, Washington, DC, Robert R. Vieth, Lori R. E. Ploeger, Maureen P. Alger, Kyle C. Wong, Cooley Godward Kronish LLP, Reston, VA, for Respondents.

Opinion

Justice STEVENS delivered the opinion of the Court.

From 1980 to 1986 petitioner Mohamed Ali Samantar was the First Vice President and Minister of Defense of Somalia, and from 1987 to 1990 he served as its Prime Minister. Respondents are natives of Somalia who allege that they, or members of their families, were the victims of torture and extrajudicial killings during those years. They seek damages from petitioner based on his alleged authorization of those acts. The narrow question we must decide is whether the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), 28 U.S.C. §§ 1330, 1602 et seq., provides petitioner with immunity from suit based on actions taken in his official capacity. We hold that the FSIA does not govern the determination of petitioner's immunity from suit.

I

Respondents are members of the Isaaq clan, which included well-educated and prosperous Somalis who were subjected to systematic persecution during the 1980's by the military regime then governing Somalia. They allege that petitioner exercised command and control over members of the Somali military forces who tortured, killed, or arbitrarily detained them or members of their families; that petitioner knew or should have known of the abuses perpetrated by his subordinates; and that he aided and abetted the commission of these abuses.¹ Respondents' complaint sought damages from petitioner pursuant to the Torture Victim Protection Act of 1991, 106 Stat. 73, note following 28 U.S.C. § 1350, and the Alien Tort Statute, 28 U.S.C. § 1350. Petitioner, who was in charge of Somalia's armed forces before its military regime collapsed, fled Somalia in 1991 and is now a resident of Virginia. The United States has not recognized any entity as the government of Somalia since the fall of the military regime. See Brief for United States as Amicus Curiae 4.

Respondents filed their complaint in November 2004, and petitioner promptly moved to dismiss. The District Court stayed the proceedings to give the State Department an opportunity to provide a statement of interest regarding petitioner's claim of sovereign immunity. Each month during the ensuing two years, petitioner advised the court that the State Department had the matter “ ‘still under consideration.’ ” No. 1:04cv1360 (ED Va., Aug. 1, 2007), App. to Pet. for Cert. 44a. In 2007, having received no response from the State Department, the District Court reinstated the case on its active docket. The court concluded that it did not have subject-matter jurisdiction and granted petitioner's motion to dismiss.

The District Court's decision rested squarely on the FSIA.² The FSIA provides that a “foreign state shall be immune from the jurisdiction” of both federal and state courts except as provided in the Act, 28 U.S.C. § 1604, and the District Court noted that none of the parties had argued that any exception was applicable, App. to Pet. for Cert. 46a–47a. Although characterizing the statute as silent on its applicability to the officials of a foreign state, the District Court followed appellate decisions holding that a foreign state's sovereign immunity under the Act extends to “ ‘an individual acting in his official capacity on behalf of a foreign state,’ ” but not to “ ‘an official who acts beyond the scope of his authority.’ ” Id., at 47a (quoting Velasco v. Government of Indonesia, 370 F.3d 392, 398, 399 (C.A.4 2004)). The court rejected respondents' argument that petitioner was necessarily acting beyond the scope of his authority because he allegedly violated international law.³

The Court of Appeals reversed, rejecting the District Court's ruling that the FSIA governs petitioner's immunity from suit. It acknowledged “the majority view” among the Circuits that “the FSIA applies to individual officials of a foreign state.” 552 F.3d 371, 378 (C.A.4 2009).⁴ It disagreed with that view, however, and concluded, “based on the language and structure of the statute, that the FSIA does not apply to individual foreign government agents like [petitioner].” Id., at 381.⁵ Having found that the FSIA does not govern whether petitioner enjoys immunity from suit, the Court of Appeals remanded the case for further proceedings, including a determination of whether petitioner is entitled to immunity under the common law. Id., at 383–384. We granted certiorari. 557 U.S. ––––, 130 S.Ct. 49, 174 L.Ed.2d 632 (2009).

II

The doctrine of foreign sovereign immunity developed as a matter of common law long before the FSIA was enacted in 1976. In Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983), we explained that in Schooner Exchange v. McFaddon, 7 Cranch 116, 3 L.Ed. 287 (1812), “Chief Justice Marshall concluded that ... the United States had impliedly waived jurisdiction over certain activities of foreign sovereigns.” The Court's specific holding in Schooner Exchange was that a federal court lacked jurisdiction over “a national armed vessel ... of the emperor of France,” id., at 146, but the opinion was interpreted as extending virtually absolute immunity to foreign sovereigns as “a matter of grace and comity,” Verlinden, 461 U.S., at 486, 103 S.Ct. 1962.

Following Schooner Exchange, a two-step procedure developed for resolving a foreign state's claim of sovereign immunity, typically asserted on behalf of seized vessels. See, e.g., Republic of Mexico v. Hoffman, 324 U.S. 30, 34–36, 65 S.Ct. 530, 89 L.Ed. 729 (1945); Ex parte Peru, 318 U.S. 578, 587–589, 63 S.Ct. 793, 87 L.Ed. 1014 (1943); Compania Espanola de Navegacion Maritima, S.A. v. The Navemar, 303 U.S. 68, 74–75, 58 S.Ct. 432, 82 L.Ed. 667 (1938). Under that procedure, the diplomatic representative of the sovereign could request a “suggestion of immunity” from the State Department. Ex parte Peru, 318 U.S., at 581, 63 S.Ct. 793. If the request was granted, the district court surrendered its jurisdiction. Id., at 588, 63 S.Ct. 793; see also Hoffman, 324 U.S., at 34, 65 S.Ct. 530. But “in the absence of recognition of the immunity by the Department of State,” a district court “had authority to decide for itself whether all the requisites for such immunity existed.” Ex parte Peru, 318 U.S., at 587, 63 S.Ct. 793; see also Compania Espanola, 303 U.S., at 75, 58 S.Ct. 432 (approving judicial inquiry into sovereign immunity when the “Department of State ... declined to act”); Heaney v. Government of Spain, 445 F.2d 501, 503, and n. 2 (C.A.2 1971) (evaluating sovereign immunity when the State Department had not responded to a request for its views). In making that decision, a district court inquired “whether the ground of immunity is one which it is the established policy of the [State Department] to recognize.” Hoffman, 324 U.S., at 36, 65 S.Ct. 530. Although cases involving individual foreign officials as defendants were rare, the same two-step procedure was typically followed when a foreign official asserted immunity. See, e.g., Heaney, 445 F.2d, at 504–505; Waltier v. Thomson, 189 F.Supp. 319 (S.D.N.Y.1960).⁶

Prior to 1952, the State Department followed a general practice of requesting immunity in all actions against friendly sovereigns, but in that year the Department announced its adoption of the “restrictive” theory of sovereign immunity. Verlinden, 461 U.S., at 486–487, 103 S.Ct. 1962; see also Letter from Jack B. Tate, Acting Legal Adviser, Department of State, to Acting Attorney General Philip B. Perlman (May 19, 1952), reprinted in 26 Dept. State Bull. 984–985 (1952). Under this theory, “immunity is confined to suits involving the foreign sovereign's public acts, and does not extend to cases arising out of a foreign state's strictly commercial acts.” Verlinden, 461 U.S., at 487, 103 S.Ct. 1962. This change threw “immunity determinations into some disarray,” because “political considerations sometimes led the Department to file ‘suggestions of immunity in cases where immunity would not have been available under the restrictive theory.’ ” Republic of Austria v. Altmann, 541 U.S. 677, 690, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004) (quoting Verlinden, 461 U.S., at 487, 103 S.Ct. 1962).

Congress responded to the inconsistent application of sovereign immunity by enacting the FSIA in 1976. Altmann, 541 U.S., at 690–691, 124 S.Ct. 2240; see also Verlinden, 461 U.S., at 487–488, 103 S.Ct. 1962. Section 1602 describes the Act's two primary purposes: (1) to endorse and codify the restrictive theory of sovereign immunity, and (2) to transfer primary responsibility for deciding “claims of foreign states to immunity” from the State Department to the courts.⁷ After the enactment of the FSIA, the Act—and not the pre-existing common law—indisputably governs the determination of whether a foreign state is entitled to sovereign immunity.

What we must now decide...